Tuesday, August 16, 2005

Questioning a constitution

I've been checking in regularly on Tim Selwyn's online constitutional convention aimed at establishing a draft constitution for a Republic of Aotearoa, and there's an obvious question nobody there is asking: do we actually need one? New Zealand already has a constitution. It's unwritten (meaning that is is scattered across several documents, including the Constitution Act 1986, Letters Patent, Electoral Act 1993 and the Treaty of Waitangi), but it works well enough in ensuring that we have a functional government. And at present, it provides a great deal of flexibility. This is both an advantage and a disadvantage: on the plus side, our constitutional structure is far more responsive than (for example) that of the US or Australia (where changes require a long and involved ratification process); on the negative side, there is a danger that that flexibility could be used against us - and there's certainly a real danger that it will be used against Maori. A formal constitutional document could prevent that - though I think that any which did would have great difficulty passing in the present climate.

One option, if we want a republic or other constitutional change, is simply to work within the current unwritten system. This may not be as elegant, but it allows changes to be pursued piecemeal rather than all in one go - making it easier to get majority support for each (and preventing a draft constitution from failing because a majority objects to some part of it rather than the document as a whole). Needless to say, I think this has a far greater chance of success than the "all-in-one" method.

An example of this philosophy in action is Keith Locke's Head of State Referenda Bill [PDF]. While this is about establishing a "twink republic" (one in which the Queen and Governor-General are twinked out of our constitutional structure and replaced with an elected or appointed president), other republican models (such as the Swedish-style republic which does everything through the Speaker) could easily be implemented through similar legislation. The same applies to other constitutional changes - if we want to entrench the Bill of Rights Act or the Treaty or change the name to "Aotearoa / New Zealand", we can propose and debate legislation to do that as well.

This is not to say that we should not try and codify our constitution - that would be an essential part of the above process. But a piecemeal approach builds on our existing strengths and IMHO greatly improves the odds of actually achieving change.


We already have a draft constitution:

A Constitution for New Freeland.

Although, given that it treats individual rights as sacrosanct, it might come as a bit of a shock to most NZers, who're used to being ruled.

Posted by Duncan Bayne : 8/16/2005 08:30:00 AM

If we simply renamed the G-G as president, the PM would, just like the G-G, be able to hire and fire them at will.

This might not be popular, so we might think about going to an elected president. The trouble then with making no further changes is that the incumbent might at some stage decide that they had some degree of popular legitimacy - and for instance start trying to use reserve powers, or maybe even refuse to assent to legislation that they didn't like.

Posted by Rich : 8/16/2005 11:27:00 AM

Rich: there are advantages and disadvantages to either form of a twink republic. Which is one of the reasons I favour the Swedish model - it makes the person exercising the reserve powers independent of the PM, while binding them tightly by a strong (existing) convention of neutrality.

Regardless, doing things piecemeal means that the fate of other changes we wish to pursue is not bound to that of the head of state; people will support or oppose the idea of (say) an entrenched bill of rights on its own merits, rather than because they oppose the particular form a presidency might take.

Posted by Idiot/Savant : 8/16/2005 11:53:00 AM

I've said it before, I'll say it again:

Every state has an unwritten consitution, whereby tradition and norms direct what occurs. And that unwritten consitution, embodying traditions, is always more important than the written one.

See (eg) the old Soviet Union's constitutional promises of Free Speech. Or the complete lack of protecton that Weimar Germany's constituion afforded when the chips were down.

See (eg) the main power of the US Supreme Court, which is its power to strike down legislation. That power is not in the written US consitution, the Supreme Court invented (sorry "discovered") it, and it has changed markedly over time (in particular its applicability to State as opposed to Federal laws). Or look at what the federal govt in the US does now, compared to what its "clearly defined" constitutional role was 150 years ago.

That's why I'm very suspicious of attempt to make big changes to our consitution. Those who want to do so usually claim that they want to replace traditions with written rules, because written rules are somehow safer. But really they're going to throw away one set of traditions and norms, and replace them with a new set of traditions and norms with little control over what the new set will be like.

Posted by Icehawk : 8/16/2005 12:30:00 PM

Icehawk: which is why a piecemeal approach is probably the safer route; we'd get to keep our unwritten norms, rather than stating from Year Zero with a blank slate (at least in some people's minds).

Posted by Idiot/Savant : 8/16/2005 12:40:00 PM

It's all very well to say that we could adopt a model somewhat similar to Sweden (Sweden has a function-free monarch, not a function-free president AFAIK).

If we passed Keith Locke's act, we would up with an elected president performing the same traditional duties as the G-G. Let's say that at some point we elected a socially conservative president, and then a more progressive government passed some sort of reform legislation like the Civil Union Bill. You could see a president asserting that, although G-Gs and monarchs have not refused assent to a bill for 200 years, he isn't a G-G or a monarch and as the elected president does not feel obliged to assent to legislation. I don't think this is an impossible situation - and it could easily be the other way round with a left-wing president seeking to block conservative laws.

Effectively, changing from a G-G to a president is like knocking down an internal wall in a house - it might be a good idea to have a bigger living room but you need to do something holding the roof up.

Posted by Rich : 8/16/2005 01:34:00 PM

Rich: I think that any change to the office of Governor-General must be combined with a codification of the reserve powers, so that we know exactly what they are allowed to do and in what circumstances. And part of this codification should be the removal of the entire notion of "assent". It serves no purpose other than the ceremonial, and so that is what it should be reduced to. Likewise for the power to dissolve Parliament or appoint a Prime Minister. If we want a figurehead, then we must ensure that that is all they are.

Posted by Idiot/Savant : 8/16/2005 01:51:00 PM

I/S: While I am somewhat bewildered by your comfort with an indeterminate timeframe and ill-defined constitution. "Do we actually need one?" - Yes. I acknowledge that it would probably be easier to do things (as we have always done) in an ad hoc way.

The purpose of the republican convention is to see what that final unitary document might look like.

Codification is a good start but that is a debate in itself - as what one person considers "in" another might consider "out". And when judges have said things like (paraphrasing) "some common law principles run so deep that no statute could over-turn them" means the experts don't even know what the current constitution is!

I am running the discussion on various issues to advance to that final text on a simultaneous basis. Some may think that putting the cart before the horse - I do not. Fluffing around and accepting the current system in itself limits debate by imposing an artificial handicap: the current conception of what is possible.

I will add the Electoral Act 1993 and G-G's Letters Patent to the codification project.

I have not even considered the name(s) of our country at this point and no one has yet raised it.

I encourage anyone with an opinion or information to make a contribution. (We are already ahead of the parliamentary site as far as comments go.) There is no "hidden" agenda here. The text could be very short or it could be quite lengthy. It may just restate almost everything we have now (codification) or be a wholesale reform. As moderator I can push, but I must state the general consensus on any issue if one emerges.

The next agenda will be issued on 31 August. Final text publicly released 5 February.

All comment should be kept anon.

Posted by t selwyn : 8/16/2005 03:50:00 PM

Sorry, I mentioned the name in the first paragraph of the agenda.

Posted by t selwyn : 8/16/2005 05:02:00 PM

Tim: Our present constitution may be many things, but "ill-defined" is not one of them. It covers all the essentials - legislature, executive, judiciary, elections, powers, boundaries - needed to actually run the place. Yes, there's uncertainty (including uncertainty about exactly how far Parliamentary sovereignty extends) - but that's the joy of a common law system, where we only definitively answer the questions we have to (and even then things can be argued; hell, things can always be argued).

While we can start picking up the pieces of our constitution and putting them all in one place (as the Constitution Act did in the 80's), my point is that we don't need to to function - and we certainly don't need to if we want change. If we want a republic, then it can be as simple as sticking up a bill laying out a pathway (as Keith Locke has done); if we want to answer Lord Cooke by making the BORA supreme law and limiting Parliament's ability to change or override it, we can do the same. And we can do the same for an upper house, seperation of the executive from the legislature (one of the wackier ideas I've heard), or whatever. The only reason to put them all in one place is because we want to do them all at once - which may lead to the whole project failing because of multiple sources of discontent.

I guess its also this idea of a "final" document I'm unhappy with - it smacks too much of Platonist perfectionism, of the idea that there is a perfect structure of government or a perfect balance of powers. A constitution should change with its society; it should evolve, not be treated like it was handed down by god and set in stone. If we want to pursue change, then we should try and evolve towards it - not create the sort of revolutionary break which puts everything up for grabs again (unless we want to, of course - but then we should be explicit about it, and understand what the consequences are).

Somebody shoot me - I'm sounding like a constitutional conservative (yeah, one who wants to take to it with a bloody great axe :)

Posted by Idiot/Savant : 8/17/2005 12:25:00 AM

Oh, and as an aside, I heartily endorse Tim's call to contribute to the discussion. Though its more throwing ideas into the ring than nailign down anythign concrete yet.

Posted by Idiot/Savant : 8/17/2005 12:26:00 AM

I/S: I see where you are coming from.

As to the Constitution Act I am glad to report the select committee noted my concerns that the Supreme Court is not mentioned at all, and that the PM can appoint themselves as Governor-General and rule with two other ministers as a triumvirate. That's too flexible for my liking.

Posted by t selwyn : 8/17/2005 08:59:00 AM

I think it's important to consider the somewhat thorny issue of how changes to our constitutional arrangments are made.

There are various items of legislation that have supermajority and/or referendum requirements - it's arguable that only convention stops a parliament from working around these requirements - given that they conflict with the principle that a parliament cannot bind its successor.

That to me argues for the distinction between basic law and general law, and for the process required to change the former, to be defined in one place.

This is not a dead issue BTW, see http://observationz.blogspot.com/2005/02/fox-gets-away-from-appeal-court.html

Posted by Rich : 8/17/2005 09:31:00 AM

Electing the Governor-General, and have a written constitution in general, are really bad moves.

It may make the G-G (President) feel that she has a democratic mandate to exercise legislative power. We would basically be held to the whim of an individual person. Now I know that's pretty much what we've got now with the Cabinet table - but MMP should mean that we should be free from arbitrary power.

The G-G's job is to stay out of politics, by voting her in, we bring her into the picture.

Also, our country doesn't need a written constitution - it does a very good job of upholding citizens' rights already. Of course, the executive has too much power, but under surpreme law power shifts to the judiciary. The judiciary is hardly more democratic than the executive.

Posted by T : 8/17/2005 10:28:00 PM

One thing to remember, is that as soon as we entrench supreme law, we run into problems.

Consider the following site: http://www.fortliberty.org/military-library/how-to-make-black-powder-and-other-explosives.shtml

As soon as a right is enshrined in supreme law, it is very difficult stop abuses of that right being weeded out.

Posted by T : 8/17/2005 10:45:00 PM

T - No, on what grounds would such a President 'legislate'? They couldn't under the status quo, the Constitution Act is quite clear that Parliament is the only authority that can legislate. Orders In Council aside, a 'twink republic' would simply mean that we have a Head of State that is for all intents just a constitutional watchdog. The 'politicisation' of the office, I would argue, is a reality allready.

Your points on the problems of written constitutions are valid if we're talking about the United States constitution - it depends upon whom you attribute the power to strike down legislation that is inconsistent with the supreme law. The United States example (i.e. the judiciary) actually results from the need for federal consistency (and yes, Ice Hawk, it's not written down but that doesn't matter - most republicans understand the difference between what's written and the modus operati of a constitution) in law, with the federal constitution being supreme.

Posted by Lewis : 8/17/2005 11:00:00 PM

T: "it does a very good job of upholding citizens' rights already" If you're white: yes. If you're a Maori it becomes: maybe.

Read section 32 of the Foreshore and Seabed Act and tell me it isn't just racist, but it is offensive to the point of unconstitutionality. Any constitution that allows that to be the law we all must obey is not a constitution I can ever support.

The Police Complaints Authority? Is that farce worthy of being considered "a very good job".

Any party hack can have high office conferred on themselves without any notice, public scrutiny or subsequent accountability. Is that OK too... ?

The quorum for the Executive that officially makes almost all the governmental decisions in our State and passes every regulation in existence, is two ministers and the Governor-General, or three ministers and no Governor-General. Nothing stops the PM appointing themselves or their pet monkey for that matter as the Governor-General. Does that sound very good to you? Are you going to vote in favour of that if you had a choice?

Posted by t selwyn : 8/18/2005 12:09:00 AM

The thing is, you can put the issue of Republicanism on one side and still have a lot to talk about in terms of Constitutional reform. Canada, fo example, underwent major constitutional reform in the early 1980s, but remained a constitutional monarchy.

I think the three biggest issues that actually need to be looked into are:

1. The status of the Treaty of Waitangi. Should it be enshrined in in a New Zealand Constitution, and if so, in what way? What status should the Treaty Claims process have in law?

2. What rights should we have? Currently, in New Zealand, we have essentially no rights. We have a Bill of Rights and common-law rights, but theses are regularly overridden by other legislation. For one example, we often think we have the right not to be subjected to unreasonable searches and seizures-- but legislation governing the SAS pretty much countermands that. We like to think that we can't be subjected to discrimination based on our age, but legislation provides different benefit rates for under- and over 25s. We think we have a right to privacy, but that goes out the window if you're a woman wanting an abortion. I call that a pretty-much Rights Free legislative environment and a Bad Thing.

3. Who should have responsibility for making legislation conform to constitutional law? In the current environment, no-one seems to be overly involved in this essential area. Should the legislature be trusted to do this alone? Should the courts be the primary vehichle for this process? Something else?

Posted by Beast : 8/18/2005 11:09:00 AM